Obama administration defends $222,000 file-sharing verdict

The Obama Administration has stepped into a long-running file-sharing lawsuit in Minnesota, urging the United States Supreme Court not to get involved in a six-figure verdict against a young mother from Northern Minnesota. The feds don't buy the woman's argument that the massive size of the award makes it unconstitutional.

Jammie Thomas-Rasset has been fighting a recording industry lawsuit accusing her of sharing music using the now-defunct peer-to-peer network Kazaa for the better part of a decade. In 2007, a jury found Thomas-Rasset liable to the tune of $222,000 for sharing 24 songs. She appealed the verdict, resulting in two more trials that each produced even larger jury awards. These higher figures were thrown out by the courts, but last year, the Eighth Circuit Court of Appeals upheld the $222,000 award.

Thomas-Rasset is now seeking review by the Supreme Court. In a December brief, her lawyer drew an analogy to a line of Supreme Court decisions regarding excessive punitive damages. In those cases, juries had awarded punitive damages that were more than 100 times larger than the actual damages suffered by the plaintiffs. The Supreme Court held that such disproportionate punitive damages violate the due process clause of the Constitution.

Technically, the "statutory damages" Thomas-Rasset is facing are not classified as punitive damages. But her lawyer argues that the same logic ought to apply. The 24 songs at issue in the case can be downloaded from iTunes for $24, yet she is being ordered to pay almost 10,000 times as much for sharing them with others.

Thomas-Rasset's lawyer notes that Thomas-Rasset's trial judge "called for relief from Congress, and throughout his opinions called the statutory damages sought by the recording industry harsh and oppressive."

But in a brief filed Monday, the Obama administration rejected Thomas-Rasset's argument and urged the Supreme Court not to consider her appeal. It noted that lower courts agreed with the defense in principle that an award could be "so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable." Indeed, the trial judge had rejected a $1.5 million jury award on just those grounds. But the lower courts had concluded that a $222,000 award for sharing 24 songs was not so disproportionate and unreasonable as to violate the Constitution. And in the government's view, the Supreme Court should let that judgement stand.

"The public interest cannot be realized if the inherent difficulty of proving actual damages leaves the copyright holder without an effective remedy for infringement," the government's brief argues. Large penalties may be needed to adequately deter infringement. And while the range of possible damages established by Congress—between $750 and $150,000 per infringed work—may seem excessive to some, "Congress’s judgment as to the appropriate amounts is entitled to deference."

Unsurprisingly, the recording industry also opposed Thomas-Rasset's petition for a Supreme Court review of her case. "Jammie Thomas-Rasset’s copyright infringement was willful in the extreme," says a Monday brief from several major labels. "Three separate juries have concluded that her blatant and unapologetic violation of Respondents’ rights warranted a substantial award under the Copyright Act’s statutory damages provision." The recording industry insists that the six-figure penalty is justified in light of Thomas-Rasset's "particularly blameworthy conduct."

Thomas-Rasset faces long odds. Before she can make her case on the merits, the court must agree to hear her appeal. The Supreme Court accepts only a fraction of the appeals submitted to it, and in May it declined to review the case of Joel Tenenbaum, who like Thomas-Rasset is still fighting the recording industry in court.

Promoted Comments

My question is simple, why should the executive branch be sticking its nose into the business of the Supreme Court?

The outcome of the case has an impact on copyright law as a whole, which both the executive and legislative branches have an interest in. It isn't at all unusual for the administration (this one, or previous) to file briefs on various cases even if there appears to be no direct involvement of the executive in the case.

This brief holds no "power" over the court, they're not "sticking their nose in" in any substantial way. Just filing a brief making the administration's position known. As any other interested party can. The court is free to heed it or ignore it as they please.

I understand a lot of folks here don't agree with the position, but I find it interesting that they'd recoil at the idea of the administration even filing a brief.

FYI, the administration (specifically the Attorney General) is tasked with defending federal statutes whenever they are challenged on constitutional grounds. And a party that is making such a challenge is required to notify the AG in writing according to Federal Rule of Civil Procedure 5.1, and the court is required to allow the AG to intervene (as here) as a separate party. 28 U.S.C.A. § 2403.

Whether the administration should have intervened is a separate question, but it is generally understood that enforcing the laws (the executive branch's job) and the constitutional requirement that the President execute the laws include a duty to defend their constitutionality in court. In an abstract sense, a federal statute is the expression of the democratically elected legislature and allowing the President to selectively enforce them gives that branch disproportionate power over Congress. Thus the controversy when the Obama administration declined to similarly intervene and defend DOMA--the House of Representatives ended up raising funds to hire a private law firm to do so.

What makes a joke of the entire concept is the fact that comercial use of music without a license often faces incredibly small financial penalties. Businesses often get fined $5,000 for infringement of music. This is comercial infringement. An intent to make profit while not paying the license.

But apparently non comercial infringement by a private individual warrants quarter million dollar fines and thats perfectly A OK.

IMHO the case is worthy, but I don't think the Supreme Court is going to take it. The basic question here is "What is the line where a fine is so large that it becomes cruel and unusual?" That's an incredibly difficult question to answer and not one I see the court eager to jump on anytime soon.

But the lower courts had concluded that a $222,000 award for sharing 24 songs was not so disproportionate and unreasonable as to violate the Constitution. And in the government's view, the Supreme Court should let that judgement stand.

Yeah, and in my equally valid opinion, that is the Supreme Court's decision.

IMHO the case is worthy, but I don't think the Supreme Court is going to take it. The basic question here is "What is the line where a fine is so large that it becomes cruel and unusual?" That's an incredibly difficult question to answer and not one I see the court eager to jump on anytime soon.

Her lawyers are arguing the court already decided that - 100x the value of the original material. $220k for 24 songs is nearly 20,000 a song. How can you say that is not cruel or unusual? Is the excessive penalty only cruel and unusual when it looks excessively large or when it IS excessively large?

Oh bravo White House. First off, they should not be even trying to ask the USSC to take a case or not. I find that inappropriate and hopefully they will ignore their request. I do hope they do something about these damages though. $220k is a crippling sum for little more than a 1 CD's (remember when they existed!?) worth of music. That is like taking someone's house (depending on the location) away for stealing a CD and sharing it with some friends. Does that seem proportionate to you?

FYI, the administration (specifically the Attorney General) is tasked with defending federal statutes whenever they are challenged on constitutional grounds. And a party that is making such a challenge is required to notify the AG in writing according to Federal Rule of Civil Procedure 5.1, and the court is required to allow the AG to intervene (as here) as a separate party. 28 U.S.C.A. § 2403.

Whether the administration should have intervened is a separate question, but it is generally understood that enforcing the laws (the executive branch's job) and the constitutional requirement that the President execute the laws include a duty to defend their constitutionality in court. In an abstract sense, a federal statute is the expression of the democratically elected legislature and allowing the President to selectively enforce them gives that branch disproportionate power over Congress. Thus the controversy when the Obama administration declined to similarly intervene and defend DOMA--the House of Representatives ended up raising funds to hire a private law firm to do so.

Lol. It's been proven that criminals usually don't correctly judge the consequences of jail time when committing far more cut and dried crimes, do they actually think anyone is worried they might be on the hook for hundreds of thousands of dollars when they start up a file sharing program?

Quite glad I live in Canada, where our recently-released "Copyright Modernization Act" limits the penalties for non-commercial infringement to between $100 and $5000 for all acts of infringement, which are considered a single entity.

The executive branch is not the judicial branch. I am not sure how the Obama administration should even be involved. Let the judicial system do its job (however poorly) and STFU.

(Questionable parenthetical political jabs aside),.... THIS.Executive branch != judicial branch. Ars is just parroting the fallacies of Wired's political pandering.

I don't understand your criticism. The Obama administration filed a brief urging the Supreme Court not to take the appeal. That seems newsworthy, no?

Had to read multiple articles deep in order to get to where it actually said it was his administration weighing in.Would have seen the appropriate reference sooner had it been a direct link and not a re-paraphrasing.(For that I apologise and had redacted my earlier comment.)

Still, IMHO when an article is done on a subject, main links should be direct to the source, but with minor reference links to credit the intermediary.Otherwise readers are (as in this case) left playing "find the facts" in a game of blogger-telephone.

Every DVD I watch starts with a picture stating illegal distribution can result in fines up to $250k, and I'd guess the fines are no different for music, so this story just seems to confirm what we have known (or should have known) all along. I personally have no sympathy for this woman. Don't comit the crime if you don't like the fines. Acting like the rules don't apply to you won't get you anywhere.

Why don't we lop off an arm while we're at it. You sound like the sort that wouldn't object to that either. Why not reinstate indentured servitude while we are at it since she can obviously never actually pay such a fine?

Obviously large damages are not a deterrent. There is no proof that the RIAAs lawsuits have had any effect on the number of people that pirate. The climate has, however, forced the music industry to support downloadable media and lower their prices to be more inline with today's entertainment choices. Both of those advancements would have been stifled if the companies weren't forced to adapt.

Draconian punishment to deter is not right nor a good argument for prevention especially in the US. Lets cut off a robbers arm too?

Meanwhile on wall street no one has gone to jail for the triple A mortgage scandal. I guess they intend to squeeze people sharing a couple dozen songs for enough money here and there to make it all 'right'.

At least they haven't done a drone strike on her house....yet.

Hope and Change people, Hope and Change. As an American I am utterly disgusted by the clowns we have in Washington. We could replace them with real clowns and be better off.

And while the range of possible damages established by Congress—between $750 and $150,000 per infringed work—may seem excessive to some, "Congress’s judgment as to the appropriate amounts is entitled to deference."

I take issue with this. The Supreme Court has the prerogative to declare Congress's laws as unconstitutional. You can't make the statement that it Congress's decisions *makes* it not excessive.

That is what is at issue! Unless you declare Congress's decisions as beyond the review of the Supreme Court, this argument is just flat out wrong.

My question is simple, why should the executive branch be sticking its nose into the business of the Supreme Court?

The outcome of the case has an impact on copyright law as a whole, which both the executive and legislative branches have an interest in. It isn't at all unusual for the administration (this one, or previous) to file briefs on various cases even if there appears to be no direct involvement of the executive in the case.

This brief holds no "power" over the court, they're not "sticking their nose in" in any substantial way. Just filing a brief making the administration's position known. As any other interested party can. The court is free to heed it or ignore it as they please.

I understand a lot of folks here don't agree with the position, but I find it interesting that they'd recoil at the idea of the administration even filing a brief.

I see two problems beyond the executive branch putting its nose into the judiciary's business. (Which anyone is open to do, I understand. It just makes the administration look like the RIAA's lapdog in this instance.)

How is it lawful that plaintiffs can seek remedy for damages they can't prove? By that standard, any plaintiff deserves "obviously unreasonable" damages just because the extent of the crime is difficult to prove.

How is deterrence a valid justification for "obviously unreasonable" damages? The same argument can be made to justify lopping of the hands of petty thieves, or capital punishment for jaywalking. Clearly you need to stop touching yourself, so we're gonna kill you.

FYI, the administration (specifically the Attorney General) is tasked with defending federal statutes whenever they are challenged on constitutional grounds. And a party that is making such a challenge is required to notify the AG in writing according to Federal Rule of Civil Procedure 5.1, and the court is required to allow the AG to intervene (as here) as a separate party. 28 U.S.C.A. § 2403.

Whether the administration should have intervened is a separate question, but it is generally understood that enforcing the laws (the executive branch's job) and the constitutional requirement that the President execute the laws include a duty to defend their constitutionality in court. In an abstract sense, a federal statute is the expression of the democratically elected legislature and allowing the President to selectively enforce them gives that branch disproportionate power over Congress. Thus the controversy when the Obama administration declined to similarly intervene and defend DOMA--the House of Representatives ended up raising funds to hire a private law firm to do so.

Like, who downvotes this?

If this isn't correct, by all means pipe up and explain why.

But downvoting the simple fact that the administration commonly files briefs in SCOTUS cases, and may indeed have some duty to do so, is just sticking your fingers in your ears and denying reality.

IMHO the case is worthy, but I don't think the Supreme Court is going to take it. The basic question here is "What is the line where a fine is so large that it becomes cruel and unusual?" That's an incredibly difficult question to answer and not one I see the court eager to jump on anytime soon.

Her lawyers are arguing the court already decided that - 100x the value of the original material. $220k for 24 songs is nearly 20,000 a song. How can you say that is not cruel or unusual? Is the excessive penalty only cruel and unusual when it looks excessively large or when it IS excessively large?

Remember that this is not for downloading 24 songs, cost = $24, it is for SHARING those songs with a potentially unlimited number of other people.

She also did it knowing that sharing them was illegal, not as an innocent infringer.

Finally, she apparently shared quite a few more than 24 songs, they just picked those for the trial.

Should the laws be changed for small-scale pirates like her? Probably. But she knowingly broke the current laws and must deal with the consequences.

Did she do it knowingly? How many people were aware that Kazaa automatically shared what you downloaded? I'd bet a fair percentage.

As for the potentially unlimited number of people point. If they can't prove it was 1 or 1000000 doesn't that send up a red flag? Just a little one?

Timothy B. Lee / Timothy covers tech policy for Ars, with a particular focus on patent and copyright law, privacy, free speech, and open government. His writing has appeared in Slate, Reason, Wired, and the New York Times.